1. Workfare: what happens when the government doesn’t want to release information?

    You might have seen it in the Daily Mirror: the full extent of the Department of Work and Pensions’ legal costs, incurred while fighting the obligation to name the companies who participated in the Workfare scheme.

    Workfare is a government program which required the unemployed to work for one of the participating organisations, in exchange for no pay other than their existing benefits — working out lower than the minimum wage.

    It’s a story in which our site WhatDoTheyKnow is strongly involved. The original request for the list of companies participating in the Workfare scheme was made on the site back in January 2012 by user Frank Zola.

    That request was refused, noting that the information was “being withheld under Section 43 of the FOI Act which relates to the commercial interests of both the Department and those delivering services on our behalf”.

    As any WhatDoTheyKnow user is given the means to do, Zola referred the request to the Information Commissioner. They ruled in favour of the release.

    The government were unforthcoming, however, and the matter was taken to tribunal and through the court of appeal. Zola continued to pursue the case doggedly as the government repeatedly questioned the ruling that the information must be released into the public domain. Their defence was that the companies and charities listed as participating in the Workfare scheme might suffer negative effects to their reputation and commercial viability, given the strong swell of public opinion against the scheme.

    In July 2016, four and a half years after the request had first been made, the full list was finally disclosed, and can be seen on WhatDoTheyKnow here.

    But the story doesn’t end there. More than one person, including the Mirror’s own reporters, wondered just how much had been spent by defendants on both sides of the legal tussle. In August another user lodged this request with the DWP and discovered that their costs amounted to £92,250.

    Meanwhile, a similar request to the ICO reveals that their costs in defending the case used a further £7,931 from the public purse.

    We highlight this story partly because it shows the value of persistence. WhatDoTheyKnow is designed to help users to understand their rights. If your request is refused, it makes it clear that you have the right to request an internal review, making that route less intimidating to those who don’t know the ropes. If you go on to the appeals process, we hope that having all previous correspondence online helps with that. Other users can also offer help and support via the annotations system.

    In this case though, we think many would have been deterred once the matter had been referred to the higher courts, and we congratulate everyone concerned for sticking to their guns and getting this information out into the public domain.

    In a further twist, it’s perhaps worth relating that a few weeks ago, the supermarket Sainsbury’s contacted the WhatDoTheyKnow admin team and asked us to remove their name from the list of organisations who took part in Workfare, since “a small number of our stores did participate in the government’s Work Experience programme but this was not company policy”. We decided not to comply with this request.

    Image: Andrew Writer (CC-by/2.0)

  2. Can you leak a decision that has not yet been made?

    Few of our users realise this, but hardly a week goes by without mySociety receiving a legal threat relating to our Freedom of Information website WhatDoTheyKnow.com.

    These might refer to perceived libel in a request, or to material released in error, which an authority now wishes to retract. In the normal course of things, our team deal with legal issues quickly and diligently, occasionally consulting our lawyer – and generally speaking, they never need concern our users.

    On Friday November 7th, at 2:17pm, we received a ‘letter before action’ from Enfield Council’s legal department, asking us to do two things: first, that we take down a certain request, and secondly that we provide them with information on the person who had raised it.

    By 3pm.

    Well, that’s a quick turnaround even by the standards of our crack team of volunteers, even if it had been clear that Enfield had a good legal case. And, once we looked closely, we weren’t at all sure that they did.

    Image by Michael NewmanThe FOI request which had triggered this message seems like a fairly standard one: it asks for information about the closure of public libraries, and how much those closures would contribute towards the council’s stated target of making £65 million of savings over the next three years.

    It is worth mentioning that the name this FOI request was filed under was clearly and demonstrably an impersonation – it claimed to be from the CEO of Enfield Council. In fact, we’d already been in correspondence with the council over this, and, as impersonation is against our site policies, it was a quick and easy decision for us to remove the name.

    But now came this follow-up from the legal department, with its two demands. The second of these – details of the requester – is also a simple matter. At WhatDoTheyKnow, we do all we can to protect our users’ privacy. We would not release a user’s name without a court order, as we state quite explicitly in our Privacy Policy:

    We will not disclose your email address to anyone unless we are obliged to by law, or you ask us to.

    – and indeed, we have only done so once, when compelled to by a court order, in all the site’s long history (currently standing at over 200,000 FOI requests and over 71,000 users).  The other point was slightly more tricky. We do our best to run WhatDoTheyKnow in the most responsible manner possible, for our users and for public authorities. We often have to tread a delicate line in order to do so.

    Often there is a good reason that public bodies want information taken down, and the team routinely act rapidly to remove personal information, and other material that public bodies accidentally release, from our website. When we do take material down, wherever possible we do so transparently, leaving a note explaining what’s been removed and why.

    But, where possible, we do not remove a request from the site, unless there is a very clear reason why its publication is breaking the law. Putting the mischievous name of the requester aside, this appeared to be a standard request about libraries and funding.

    On occasions, like this, when requests to take material down appear unfounded or overzealous, we challenge them.

    The notice before action stated that ‘the public availability of this information is or is likely to be highly damaging to Enfield Council’s ability to properly carry out those projects’. It also referred to ‘confidential and commercially sensitive’ material having been released, but we can find little within the request that is not publicly available elsewhere – for example, on the council’s own website one can find details of the Library Plan Development consultation document, containing very similar information – and nothing that seems obviously sensitive.

    The council  have recently been reported as saying:

    “No decisions have been made yet on the type of library or the location of libraries. The final decision on the library service, location and different types of libraries will be made in February or March next year following the conclusion of this consultation.”

    So – if a decision has not yet been made, the number of libraries to be closed cannot be a leak, as the information does not yet exist.

    For those reasons, we responded to Enfield Council ask for clarification. We took down the request in question as a precaution, while we awaited this clarification. We gave them slightly longer than 43 minutes in which to do so — in fact, we contacted them on 10 November asking them to reply by 5pm on 14 November with clarification on their position.

    For some reason it took them until 13 November to say they wouldn’t be able to reply substantively by then, so we asked them to respond instead by 5pm today — otherwise we would make the request public again.

    No clarification has yet arrived. That being the case, we have made the request live.

    Image: Michael Newman (CC)